Yesterday I had the pleasure of meeting with Alma Robinson, Executive Director of the California Lawyers for the Arts. 

Alma established  Alternative Dispute Resolution Services in 1980 and she shared a very helpful strategy for your creative enterprise, adding a mediation clause to your contracts.

In doing business consulting with artists, I find that their legal rights are often compromised because:

• Artists often do not completely understand their rights
• Artists are often reluctant to assert their rights
• Artists do not have proper written agreements to protect their rights or their business terms
• Artists often don’t have the funds to duke it out in court

And let’s face it; people will take advantage of those they perceive as weaker.

So what to do? 

First of all, be professional. 

Discuss your business terms clearly and then reiterate them in writing. 

Do not transact business without a written contract. If someone doesn’t want to sign a contract, then that is a BIG red flag.

You can simply spell out your business terms on your invoice or sales receipt.  It’s not complicated.  For example:

• Who owns the copyright? You do, unless you are transferring or licensing it. Spell this out.
• When is the payment due?
• What exact services or products are you providing in exchange for payment?
• When will you delivering the services or products?
• Is shipping included?
• What is the sales tax amount?
• What form of payment do you accept?
• Will you accept returns or exchanges?
• What is the date of the sale?

No one wants a fight. It can be costly, stressful, and strains relationships. Most importantly, it can damage reputations.

So take a great tip from the California Lawyers for the Arts.  Add a mediation clause to your written contracts. 

This post does NOT constitute legal advice.  That’s not my job. And you may not be from California. 

The point is, just make it clear to your customers that they must agree to mediation in the case of a dispute.  You will be:

• Setting a cooperative tone
• Protecting yourself
• Demonstrating your professionalism
• And saving yourself from legal fess and ligation that you may not be able to afford

Mediation

All disputes arising out of this agreement shall be submitted to mediation in accordance with the rules of Arts Arbitration and Mediation Services, a program of California Lawyers for the Arts.

 

Mediation/Arbitration

All disputes arising out of this agreement shall be submitted to mediation in accordance with the rules of Arts Arbitration and Mediation Services, a program of California Lawyers for the Arts.

If mediation is not successful in resolving all disputes arising out of this agreement, those unresolved disputes shall be submitted to final and binding arbitration. The arbitrator shall be selected in accordance with the rules of Arts Arbitration and Mediation Services, a program of California Lawyers for the Arts. If such services are not available, the dispute shall be submitted to arbitration in accordance with the laws of the State of California. The arbitrator’s award shall be final, and judgment may be entered upon it by any court having jurisdiction thereof.

Arbitration

All disputes arising out of this agreement shall be submitted to final and binding arbitration. The arbitrator shall be selected in accordance with the rules of Arts Arbitration and Mediation Services, a program of California Lawyers for the Arts. If such services are not available, the dispute shall be submitted to arbitration in accordance with the laws of the State of California. The arbitrator’s award shall be final, and judgment may be entered upon it by any court having jurisdiction thereof.

 

 

What is copyright exactly?  It is the legal right to copy, or reproduce, a “work of authorship”, such as: a painting, drawing, song, or photograph.  Who is the owner of the copyright?  The author is the owner, and no one else, unless the author transfers their rights.

Why is copyright so damn important? Because your copyright is an asset that can create significant income and it is part of your brand as an artist.

So listen up to Veronique Kherian, owner of Kherian Law, a copyright attorney based here in San Francisco who will be a panelist and the upcoming Artists Who THRIVE seminar….

Just about any business owner, no matter what industry she is in, has copyrightable material worth protecting.

However, how can you tell what is eligible for copyright protection? Here are some key pointers.

1. A copyrightable work must be “original,” and so the creator of the work must have created the work herself.  There must be some “minimal degree of creativity.” Works that are made of only preexisting works, such as a collage made from magazine clippings, might only be eligible for protection as a collection because the individual elements of that work might not have been created by the person claiming copyright ownership.
2. Copyrightable work must also be a “work of authorship.”  For a single person composing a song or writing a computer program, it is relatively easy to determine the author.  In the case of a collaborative effort, with multiple sources of contribution, such as a collective work, determining an author becomes trickier.  For instance, a work has joint authors when more than one person has contributed to a work, and they all intended that their individual contributions are interdependent or inseparable vis-à-vis the whole work.
3. Copyrightable work must be “fixed in any tangible medium of expression.”  There must be some fixed, physical embodiment of the work.  As a rough guideline: if you can make a copy of it, view it, hear it, or touch it, the work is fixed.

Copyright protection will not extend to ideas, or intangible concepts.  For instance, if someone discovers a better method of tying one’s shoes, the method will not be copyrightable.  The typed explanation of this method, however, may be. This is a topic that delves into the realm of patent law, and should be discussed with a patent attorney.  Blank forms are usually not copyrightable either.

This description of copyrightable work is brief, and the law of copyright is broad.  If you have any questions about protecting your intellectual property, please contact an attorney.

Veronique Kherian focuses her practice on trademark and copyright issues.

You may contact Ms. Kherian at:

• info [at] kherianlaw.com
• 415-766-9366. Kherian Law’s
• www.kherianlaw.com

When copyright infringement is disregarded can the value of your original art work protected?

Yesterday I received this friendly and generous email from “Cindy” in China.  Something just tells me that is not her given name.

Hand-Painted;Customized;Reasonable Price;Satisfaction Service;

Hi,

We are one of the leading OIL PAINTING REPRODUCTION wholesaler from China.We can offer you competitive price for oil painting reproduction based on fine quality.

Our oil painting reproduction on canvas includes Abstract oil paintings, Impressionism, Still life, Landscape, Animal, Mediterranean Sea, Flower etc.

Price is starting from US$3.00/Pic for decoration style with size 8″x12″. You are welcome to  offer us picture&size&quantity you required.(Starting from quantity 1 )We will quot. you as per your requirement.

Welcome visit at www.artsingallery.com  for more.

Thank you for any of your kind response.

Regards,

Cindy
Fine Art Gallery Shop
www.artsingallery.com

Mail: [email protected]
Xiamen.China

Before you have an experience of mild disgust, let’s learn from this.

Here’s the thing.  The concept of intellectual property simply does not hold the same weight in China.

If an idea can offer up value to the common good then they see no reason that it should not be shared.  So it’s not really stealing.

The problem with this mentality is that the profit incentive to innovate is quickly eroded.

But this is an economic force that us creative types have been, and will, continue to bump up against.

So clearly we creatives must bring more to the table than just a product called art.

The value proposition of a painting, a piece of jewelry, or a sculpture must contain deeper layers of value so that it cannot be easily copied.

Here are some things to consider.

• What is the story of your creations and how do you convey it?
• What is your personal relationship with collectors and how do you cultivate it?
• What elements of added value do you offer besides the finished works of art?
• Will you create bespoke works for collectors?
• What elements of creative value do you offer that cannot be copied?

“Work for hire” is a provision of the US Copyright Act intended as a narrow exception to the general rule that the artist or author who actually creates the work owns the copyright to it.” *

Why is this important to you? Well, if you read the previous post about the contentious matter of copyright infringement, it is very important.

The right to reproduce or copy your work belongs solely to you, the artist.  And this right affords you one of the most valuable assets that you may ever own, your intellectual property.

The “work for hire” provision gives ownership to the employee or the party who commissions an artist’s work.  This provision leaves the artist with no rights whatsoever.

If there is a traditional employment situation, such as an artist who is an employee or freelancer, this arrangement may be very well justified.

But here’s the important point, this arrangement must be verified in writing and signed by both parties to be legal.

An employer can’t just throw it into the mix later.  And just because employers do, it doesn’t make it right or legal.

So here’s a word to the wise: some employers will try to assert a “work for hire” contract after the fact.  If so, hold your ground.  Understand and maintain your rights.

The problem with too many “work for hire” arrangements is that artists lose valuable resources of future income and control over their images and reputations.

Read your contracts carefully for “work for hire” provisions that attempt to circumvent copyright law.

Note, my fine art business involves exclusively commissioned based work.

My contract very clearly stipulates that I retain all rights to my intellectual property.

I also put my patrons on notice that all works will be registered with the Library of Congress so that I can exercise the right to recover the maximum damages allowed by law.

 *Handbook of Pricing and Ethical Guidelines published by the Graphic Artists Guild.

Today I had lunch with a dear friend, let’s call him Steve, who is currently mediating a dispute between two dear friends who also are also doing business together.

One friend, let’s call him Collin, is an extraordinarily talented photographer.

The other friend, let’s call him Mathew, learned photography from his naturally talented friend Collin.

Now Collin, although he’s a gifted creative talent, doesn’t exactly excel in the business and marketing departments, just yet.

Matthew on the other hand is much more of a marketing kind of guy and knows how to hustle for gigs.

So the story starts with these two friends wanting to help each other. “The path to….”

Collin teaches Matthew the craft of photography then Matthew starts getting great gigs for Collin. Cool.

Now Matthew has developed a company that has a nice stable of photography talent that he’s representing.

Unfortunately Matthew has developed this company without taking the time to gain an understanding of international copyright law and ethical business practices.

Why?  He is using the images of photographers that he represents without giving them credit and “without” a written licensing agreement that stipulates this.  Bad move.

Not only legally and ethically but personally it’s just wrong. And he is alienating his dear friend and mentor Collin.

Why?  Well, Matthew is asserting that he just wants to control his photography company’s brand.

“Look here Collin, I’ve brought you so much business.  Why are you not forever grateful?” says Matthew.

When Steve told me this story I immediately called bullshit.  Come on dude.  You want to operate a business, know the law.

Credit lines are not only standard fair practice, what control over the brand is Matthew really gaining by not giving credit where it is due?

Let’s just be real.  What Matthew is really afraid of is that clients are going to go around him and work with the photographers directly and he’ll loose his piece of the action.

This is a scarcity point of view and just because he’s representing them he is not entitled to all of their revenue.

Here’s the thing.  Copyright, the right to reproduce, belongs soley to the creator. That’s it.  If they want a credit line, fork it over.

You can no more help yourself to someone’s intellectual property than you can help yourself to the contents of someone’s purse.  You must gain permission, in writing.  It’s called a licensing agreement.

I wouldn’t care how much business someone was bringing me, if they forced this type of arrangement I’d tell them to take a flying frickin’ leap.